Tuesday, February 23, 2016

More on filling vacancies in the Supreme Court

I've written elsewhere about the current controversy involving replacing Justice Antonin Scalia. In connection with that controversy, I have thought about several situations where the Constitution indicates that certain things "shall" happen but without giving an explicit time frame. I think there could be some benefit to the vagueness, to allow flexibility that might be needed in different circumstances. On the other hand, there's the potential for abuse of that vagueness, even the possibility such vagueness could lead to a constitutional crisis.

In particular, I have wondered whether a delay in filling a Supreme Court vacancy could theoretically be indefinite. That is, could a president indefinitely delay nominating a justice--including a chief justice--and could the Senate indefinitely delay giving consent, not to mention delay even considering the nominee? By "indefinitely" I mean (theoretically) forever. In practical terms, it might mean until the parties involved knew they could get what they wanted. For instance, a president could leave a vacancy open until he was sure there would be support in the Senate for his nominee. Or the Senate (meaning those holding power in the Senate) could delay until circumstances allowed them to entertain a nomination that pleased them. Suppose, for instance, that a Republican president served for two full terms and that during those terms the Senate was controlled by the Democratic Party. Suppose further that the chief justice of the Supreme Court died or resigned and that a number of associate justices died or resigned--theoretically, as many as the entire Supreme Court. Could the president constitutionally fail to nominate anyone (for fear that the Senate would reject his nominations), or--more likely--could the Senate refuse to approve or even to consider any of the president's nominations, leaving the court without a chief justice, perhaps without several justices, even (theoretically) with no one at all on the bench?

As I've suggested, such delays could lead to a constitutional crisis. The Constitution assigns important functions to the Supreme Court, so that the lack of a functioning court would make it impossible for some constitutionally mandated duties to be fulfilled--not to mention the general distress and confusion that would result.

I've wondered about similar problems that might arise in interpreting the Twenty-Fifth Amendment. Section 2 of that amendment specifies that "Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress." Though I assume that the intent was that these actions should take place relatively quickly, there is no explicit reference to when the actions should be taken. The provisions of section 2 have been followed twice: first, when Gerald Ford was chosen two replace Richard Nixon's vice president, Spiro Agnew; next, when Nelson Rockefeller was chosen to replace Ford as vice president when Ford succeeded to the presidency after Nixon's resignation.

In both cases, the process took place relatively quickly. Nixon nominated Ford as vice president two days after Agnew's resignation. Ford was approved by the Senate within about six weeks and by the House of Representatives about a week and a half after that. After becoming president, Ford took 11 days to nominate Rockefeller as vice president. It took about four months before congressional approval was completed and Rockefeller could be sworn in as vice president. In both cases, the process covered months--two months in the first case, a little over four months in the second.

But since the Constitution does not indicate a deadline for either nomination or approval, could either the president or Congress in these cases have delayed indefinitely--for instance, until new elections had taken place or even until a series of elections had taken place? Again, I don't think that is the intent of the Twenty-Fifth Amendment. But since a deadline isn't specified, I imagine such delays might be possible, even if their effects might be disastrous.

I suppose parties who consider such indefinite delays to be unconstitutional might take the issue to the courts, and the issue might be decided by the Supreme Court (assuming there is a functioning court capable of making a majority decision). Someone has pointed out to me that--since elections are held every two years for the House of Representatives--the people could make their will known by electing representatives who could do something to end the crisis. But as long as he is in office, a president could continue to delay even in the face of congressional opposition (though Congress would have various ways to make life difficult for the president). And if Congress is the branch of government delaying, it could continue delaying for years if it had sufficient popular support--even if the delays effectively resulted in a failure to fulfill the provisions of the Twenty-Fifth Amendment.

The current controversy concerning filling a Supreme Court vacancy seems to me similar. The Constitution indicates who "shall" do what. Article 2, section 2, says that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court." But there is no explicit indication of how soon after a vacancy the President "shall" make his nomination and no explicit indication of how quickly the Senate should give its consent. So theoretically, again, either the President or the Senate could delay indefinitely--unless the issue, the issue, that is, of failure to fulfill constitutionally mandated duties, were brought to the courts and it were decided that delay constituted such a failure. Another way of resolving the issue would be through elections that changed presidents or changed who held power in the Senate. Yet another way out of the crisis might be impeachment of the president.

I've found one similar situation in the Constitution proper--in Article 1, section 2. There we read that "When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies." When a senator or representative from a state dies or resigns, such a vacancy should be filled in the manner indicated. But could the "Executive Authority" of the state delay taking action indefinitely? Again, no deadline is indicated. But I find it hard to imagine that the framers intended anything other than a timely fulfillment of the duties indicated. And again, deliberately extended delay could constitute an abuse of the process.

This--constitutional law--is in no way my area of expertise, and so I happily invite comments from anyone who knows more than I do. Has delay in fulfilling the provisions I've mentioned--or similar ones at various levels of government--ever been tested in the courts? Is there any sort of consensus about how quickly those assigned the duties noted in these provisions need to fulfill those duties? 

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